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State v. Ernesto E. Lazo Villamil, 2015AP791-CR, petitions for review and cross-review granted 1/9/2017

Review of a published court of appeals decision; case activity (including briefs)

Issues (from the petition for review and petition for cross-review)

 1.  Whether the offense under § 343.44(2)(ar)4. can be punished as either a misdemeanor or a felony in order to resolve ambiguity in the statutory language when the legislature’s intent was to create a penalty scheme with increasing penalties for additional elements; or whether, instead, the doctrine of implied repeal should be employed to correct the obvious drafting error that created the ambiguity as to whether the offense is a misdemeanor or a felony.

2.  Whether § 343.44(2)(ar)4., having been interpreted to give discretion to the prosecution to charge an offense as a misdemeanor or a felony, can be constitutionally applied.

3.  Whether the provision in § 343.44(2)(b) stating that the circuit court “shall” consider certain sentencing factors is mandatory or directory.

This decision will resolve the issue about the penalties for operating after revocation offenses where death resulted. As described in our post on the court of appeals’ decision, some maladroit legislative drafting in 2011 Wisconsin Act 113 created ambiguity regarding the penalty for that offense. Basically, because of a failure to remove a reference to “knowingly” operating from § 343.44(1)(b), the offense of knowingly operating after revocation and causing death under § 343.44(2)(ar)4. can be punished as either a misdemeanor or a felony. Everyone agrees the statute is ambiguous, and that the legislature intended to create a graduated penalty scheme—a misdemeanor if the defendant operated without knowledge of revocation and caused death, and a felony if the defendant operated knowing he was revoked and caused death.

The court of appeals rejected Lazo Villamil’s claim that, under the rule of lenity, he could only be subject to the misdemeanor. It concluded there was no question he was guilty of the felony under the intended penalty scheme (knowingly operating after revocation and causing death) and, relying on State v. Cissell, 127 Wis. 2d 205, 378 N.W.2d 691 (1985), held that there is no problem with a crime that can be punished with different penalties, so long as the prosecutor didn’t charge the more serious penalty for invidiously discriminatory reasons.

Lazo Villamil’s petition argues the court of appeals’ “resolution” of the ambiguity in § 343.44 is infirm because it leaves two conflicting penalties in place and allows a prosecutor to choose between them, despite the legislature’s intent to create a single, graduated penalty scheme. He also reasserts his claim that allowing the prosecutor to choose between two different penalties for the same crime creates a due process problem, and argues Cissell is distinguishable and, after 30-plus years, should be re-examined. The supreme court will now address these claims.

For its part, the state’s cross-petition argues that the court should invoke the doctrine of implied repeal and essentially re-write § 343.44(1)(b) to “remove” (by construction) the word “knowingly,” thus fixing the legislature’s mistake and avoiding the problem of having different penalties for the same offense. We’ll see whether a court dedicated to interpreting statutes as they are written will hazard a step down that path or, like the court of appeals, adopt some other jerry-rigged approach.

You might be asking why the state filed a cross-petition. The answer is that the court of appeals held Lazo Villamil is entitled to resentencing because § 343.44(2)(b) says a sentencing court “shall … consider” certain specified factors, and the record shows the circuit court failed to do that here. Relying on State v. Grady, 2007 WI 81, 302 Wis. 2d 80, 734 N.W.2d 364, the court of appeals decided the shall consider” language created a mandatory duty. The state wants the supreme court to hold that, in this situation, “shall” means “may,” and is directory, not mandatory. Talk about re-writing the statute! Of course, there’s a long-established rule that “shall” is presumed to be mandatory, but can be interpreted to be directory if the legislature clearly intended that meaning. State ex rel. Marberry v. Macht, 2003 WI 79, 15-16, 262 Wis. 2d 720, 665 N.W.2d 155; State v. Moline, 170 Wis. 2d 531, 541-42, 489 N.W.2d 667 (Ct. App. 1992); State v. R.R.E., 162 Wis. 2d 698, 707, 470 N.W.2d 283 (1991). So we’ll see if the supreme court takes its red pen to this part of the statute, too.

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